Citation Nr: 1301841
Decision Date: 01/16/13 Archive Date: 01/23/13
DOCKET NO. 09-12 865 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana
THE ISSUE
Entitlement to service connection for a back disorder.
ATTORNEY FOR THE BOARD
M. Postek, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 2001 to June 2006.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction over the case was subsequently transferred to the RO in Indianapolis, Indiana.
When this case was most recently before the Board in January 2011, it was remanded for additional development. The case has since been returned to the Board for further appellate action.
The issue of entitlement to service connection for a hip disorder, to include as secondary to a back disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Board finds that further development is necessary prior to final adjudication of the Veteran's claim of entitlement to service connection for a back disorder.
The Veteran contends that chronic back pain began following a car accident sustained during service and that his current back spasms and arthritis in his back are a result of the in-service injury.
The Veteran's service treatment records show that he was seen for complaints of mid-back pain in April 2004 following a car accident in which he was rear ended and pushed into the car in front of him. On examination, the Veteran had right trapezius muscle tenderness with bilateral paraspinous thoracic muscle spasm. He was treated with medication and warm/cold compresses. Of record, there is no other treatment of the back in service.
In the Veteran's March 2008 notice of disagreement, he reported for the first time that he spoke to his private doctor in Hutto, Texas (Dr. C) about his medical issues, including his back disorder. Although the Veteran provided the name and mailing address of this doctor and copies of other private treatment provider records, it does not appear that a medical record release (VA Form 21-4142) or treatment records from Dr. C are of record.
In a July 2012 written statement, the Veteran indicated that he was still being treated for a lower back disorder. It appears that this treatment may be from a non-VA provider. Along with this submission, the Veteran provided copies of private treatment records for a hip disorder. The Board notes that the issue of a hip disorder is not before the Board at this time, and the issue has been referred to the AOJ for appropriate action, as noted above. This submission was associated with the claims file after issuance of the most recent supplemental statement of the case in August 2012 (Veteran notified in September 2012) without a waiver from the Veteran; however, as the medical records provided are not pertinent to the issue on appeal, remand for review of these records by the AOJ in the first instance is not necessary. 38 C.F.R. § 20.1304(c). Likewise, an October 2012 written submission from the Veteran reported continuing symptomatology related to his back pain and spasms. Nevertheless, the Board notes that review of the entire record, including the Veteran's supplemental statements, will be achieved upon remand.
In light of the above, it appears that additional evidence that could be supportive of the Veteran's claim might be available. Accordingly, the Board finds that further development to obtain these records is in order. 38 C.F.R. § 3.159(c).
In addition, the record indicates the July 2012 filing was submitted on the Veteran's behalf by a Gene E. Rohrer, VSO, Whitley County, along with a signed authorization to disclose personal information to a third party (VA Form 21-0845). A review of the record indicates that there is no power of attorney on file for any representative in this case. As such, on remand, VA should contact the Veteran and ask that he clarify his current representation status. Specifically, he should be asked whether he has secured representation from the Whitley County VSO or otherwise and be provided with a blank VA Form 21-22 to complete and return to the VA. 38 C.F.R. § 14.631(a)(1).
Accordingly, the case is REMANDED for the following action:
1. Undertake appropriate development to obtain copies of any outstanding records pertinent to the Veteran's claim, to include sending the Veteran a letter asking him to provide a release for any available medical records from the private doctor identified in his March 2008 notice of disagreement. If the Veteran submits such a release, these treatment records or any other identified treatment records should be requested.
The Veteran should also be asked to clarify whether he has obtained representation from the Whitley County VSO or another veteran's service organization, to include providing him with a blank VA Form 21-22 to complete and return to the VA.
2. Undertake any other indicated development.
3. Then, the issue on appeal should be readjudicated in light of all pertinent evidence and legal authority. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be furnished with a supplemental statement of the case and afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).